A profile of Canadian “tort man” Harvey Strosberg.
By Ivor Shapiro.
Published in Maclean’s magazine, March 30, 1998.
NOTE: THE FOLLOWING IS THE AUTHOR’S UNEDITED FINAL DRAFT. FACTS HAVE NOT BEEN DOUBLE-CHECKED, AND CHANGES WERE MADE IN THE EDITING PROCESS BEFORE PUBLICATION.
“I’m prepared to recommend 1.6 million,” Harvey Strosberg, Q.C., tells the other lawyer as they step off a Dash-8 commuter aircraft onto the tarmac in Toronto. He means dollars, of course, and this tarmac suggestion to his opposing counsel is only the latest gambit in the quest-central to almost any lawsuit-for the magic number (affordable to the defendant, acceptable to the plaintiff) that will settle it all. In this case, the defendant is the Government of Canada (which can afford much); the plaintiff-Strosberg’s client-is an unemployed former secretary, Dorothy Edgar, 69, who helped Revenue Canada in a fraud case and now claims she was deprived of a promised reward. How close is $1.6-million to the magic number? The government’s lawyer, Toronto litigator Julie Thorburn, offers no clue as she nods without breaking her stride into the terminal. “One point six? I’ll get back to you. Will you be at your Toronto number tomorrow?”
Well might she ask. The day before, Strosberg had been in Ottawa addressing justices of the Supreme Court of Canada. That day, Thursday, in Windsor, he cross-examined Thorburn’s first two witnesses. Friday, in Toronto, he would preside over the convocation of the Law Society of Upper Canada. Saturday: back in Windsor, preparing papers for a class action against officers of failed mining company Bre-X and the investment analysts who had touted its ill-fated stock. It is only one of three big-money class actions on the desk of a lawyer who sees himself as the scourge of big business and defender of the unfortunate, at fees starting at $400-an-hour. Just last October, Strosberg won a record $24 million for patients, hospitals and health ministries affected by a defective pacemaker device made by a subsidiary of transnational Pacific Dunlop Ltd. That class action, with its $6-million court-approved legal fee, cemented Strosberg’s reputation in Canadian law-a stage usually dominated by criminal lawyers and appeals judges. But Harvey Strosberg, tort man extraordinaire, is a lawyer whose time has come.
Not long ago, Canadians could be excused for thinking of big-money tort litigation as something Americans did. (Torts are wrongful acts, whether negligent or intended; unlike crimes, which are prosecuted by the state, torts are prosecuted by the victims with a claim for damages usually under the common law.) The undisputed “King of Torts” was Melvin Belli, the famed and flamboyant U.S. personal-injury man. Yet, sometime in the 1970s, Canadians started suing one another more often, and with more success. Lawsuits against doctors rose from 80 in 1970 to 906 in 1985. “Very seldom do patients or family members say any more, ‘Too bad Aunt Elmira died in hospital but I guess that was the will of the Lord’,” says Toronto defence litigator Michael Royce. “Instead, they order a copy of the hospital chart, go to the coroner and approach a lawyer.” One result: spiralling liability insurance costs for doctors (page XX).
And the incentive to sue grows with every big tort award. A new era began in October, 1988, when seventeen-year-old John Stein was paralyzed from the neck down after slipping on a patch of thin ice at a municipal arena in LaSalle, Ont., near Windsor. His family sued, won damages of $8.5-million, and saw the award upheld on appeal. In the past 10 years, physicians have quadrupled their payments to patients and million-dollar awards for various tort cases have become almost commonplace. A B.C. court ordered Nike Canada to pay more than $2 million in 1996 after an employee became a quadriplegic in a car crash: the company had served him alcohol and was held liable-even though the man had gone on to spend some hours drinking in a pub before getting behind the wheel. The Metropolitan Toronto Zoo, settling out of court, paid $15 million in 1995 after a six-year-old boy who scaled a perimeter fence lost an arm to wolves.
There are no comprehensive national statistics on civil actions-and some observers suspect the overall number is actually declining-but injury claims against municipalities seem on the rise, as do professional negligence actions against accountants and even lawyers. “Americans are litigation junkies and it slops over into Canada,” explains David Eryou, a Thunder Bay lawyer who has successfully lobbied for increased legislative protection for Ontario municipalities. With lawsuits in many jurisdictions waiting years for a court date as lawyers’ meters run, B.C. Supreme Court Judge John Bouck describes litigation as a “trauma” with consequences that are “often personally and economically catastrophic” to the losing party. “The civil justice system in Canada … is facing a crisis,” warned former chief justice Brian Dickson in his capacity as honorary chair of a Canadian Bar Association task force on the issue. Reporting in August, 1996, the panel called for a less adversarial legal culture in an effort (in one member’s words) to “muzzle the pit-bull litigator.”
No one is saying that Canadian litigiousness has reached U.S. levels. True, the countries share (except in Quebec) the English common-law tradition, and gaps in civil procedure are closing. Three provinces now permit class actions; Canadian judges more frequently award punitive damages against deliberate wrongdoers; Canadian lawyers except Ontario may now charge “contingency” fees (a percentage of the win). But two big differences remain to discourage spurious lawsuits in Canada. Here, a court can award costs against an unsuccessful plaintiff. And jury trials-whose unpredictability can push nervous defendants into settling-are rare in civil actions in Canada.
That leaves the law in the hands of judges, and judges insist on hard evidence before assigning a dollar value to injuries. Under rules set by the Supreme Court of Canada, “general” damages for pain and suffering are capped at $100,000 in 1978 dollars. So plaintiffs’ lawyers think harder about the future financial implications of injuries. What will care and nurture cost for the lifetime of a brain-damaged baby or crippled child? Millions, that’s what.
Harvey Strosberg, for instance, is especially proud of the settlement he won in 1993 for Jordan Dube, left spastic and quadriplegic by an anesthetic overdose during a hernia operation in Windsor at age 3. Strosberg claimed $5 million, citing future lost earnings and the cost of an accessible home and car, medical care, and half a million dollars for a trustee to look after the money. Plus, $10-million in punitive damages. Those, at least, were his bargaining chips; the defendants settled for undisclosed sums. Strosberg says: “I got that kid more money than any kid ever got in Canada.” Opposing counsel, Josh Liswood, says: “Harvey secured a wonderful result for his client.”
Liswood attributes the scale of the Dube settlement to Strosberg’s decision to look beyond the standard malpractice suit against doctors and hospital, pursuing the British manufacturer of the anesthetic vaporizer machine for product liability. Strosberg had asked whether the machine had an overflow drain to prevent overdoses; it didn’t. “I don’t care if that’s the standard of care in the industry,” Strosberg says, “if it doesn’t make any sense to me.” That is partly why the civil system exists, Strosberg argues-to encourage people to take more care. Conversely, it often does the best job of punishing wrongdoers. “In a criminal court,” Strosberg points out, “a person doesn’t have to make a defence, doesn’t have to respond, can stand on his or her rights.” In a civil case, the defendant is interrogated in “discovery” and must produce relevant documents. What is more, the action is decided by a simple balance of probabilities-less onerous than the criminal system’s need for proof beyond reasonable doubt.
Class actions, imported from the United States to Quebec, Ontario and British Columbia so far, offer this remedy more widely than ever. Strosberg’s pacemaker case offers a classic example: 1,005 claimants shared every cent of a deep-pockets corporate defendant’s liability coverage in a case too expensive to prosecute by any one individual. “When manufacturers cheat for pennies, it adds up to hundreds of thousands and millions of dollars at the end of the day,” says Strosberg. “So that’s my career path. I’m coming after those people who are cheating.” Asked if he could be called Canada’s own King of Torts, Strosberg draws a breath and murmurs: “That’s a very flattering description.” Says frequent opponent Michael Royce: “Harvey has eaten a number of fine meals in Detroit, and I think he has thereby become imbued with the entrepreneurial spirit of the Detroit bar, which is one of the most aggressive in the world.”
The U.S. influence started early: when Strosberg was a tall, tough kid walking to Windsor’s Kennedy Collegiate, the skyscrapers he saw across downtown rooftops were in Detroit, where his parents shopped and Harvey and his two sisters partied; every Sunday when there was a home game, Philip Strosberg drove his son across the river to see the Lions play football. Philip, a chemical engineer, worked for a manufacturer in Detroit and owned a small paint business in Windsor. Outside school hours, Harvey devoted himself to sports-his football coach remembers the intense young fullback bulling through the defence-and to his dad’s business. “Harvey would round up a group of his friends and send us into the stores to check whether his dad’s paint was moving,” recalls his school friend Jerry Shen. Payment was neither offered nor asked. “If Harvey said we needed to do this, then we did it.”
The homes of Harvey Strosberg tell a tale of steady advancement, from the six-plex rental unit of his early childhood to upscale Victoria Boulevard, where he and his second wife, Cathy, built their current tiered, glass-walled house in 1990. In a third-floor gym, 6:30 a.m. finds Strosberg bulging out of shorts and a Nike sleeveless top as he sweats under the eye of a personal trainer. Each step of the runon the treadmill lands with peculiar emphasis: thump, thump, thump.
Ever since articling on Bay Street to a future Supreme Court justice, the late John Sopinka, Strosberg has amassed powerful friends-federal health minister Alan Rock, star criminal lawyer Eddie Greenspan, Ontario appeals court judge John Laskin. “He was opinionated, brash, bright, fun to be with,” recalls Greenspan of the day they met. Strosberg’s client list includes more big names. For hockey giant Bobby Orr, he told the media that Alan Eagleson had mismanaged funds, and settled with Eagleson without filing suit. For Ontario judge and former deputy attorney general Mary Hogan, he won a libel apology from Frank magazine. For journalist George Jonas’s Scales of Justice TV production company, he mounted a successful defence to a breach-of-confidentiality action. He also represented, without charge, the bereaved family of profoundly handicapped Melissa Gillard at an inquest into 15 deaths at the Christopher Robin Home for Children in Ajax, Ont., in 1991.
There’s one writ he would prefer to take back: in 1991, Strosberg sued a former client for $100,000 over Detroit Pistons basketball tickets that he said the client had promised him. His brash action got press attention and questions from the Law Society. “My mistake was suing for money and not just the tickets,” Strosberg reflects while accelerating through a red light near Windsor airport. “If you’re in the public eye, it isn’t enough to be right. You have to understand how the publicity will play.”
But why sue at all-surely he could afford his own tickets? “It wasn’t the money. The guy broke an agreement with me.” Pause.
“And there was an emotional component. I’d been separated; going to basketball games was one of the few things I did with the kids. I trusted this guy, and I felt he hadn’t dealt with me reasonably.”
IT WAS ABOARD the Dash-8 en route to Toronto that Strosberg, reflecting on the day in court, decided to offer to settle Dorothy Edgar’s case at $1.6 million. He had originally demanded $2.5 million plus costs; the government had come back with $300,000. Now, with the trial near its midpoint, seemed a good time to kick-start a new round of bargaining, if Ottawa would play.
Strosberg’s essential claim was negligence: Revenue Canada had simply omitted to provide Edgar with her legally required opportunity to be considered for a reward. But the government had sprung a last-minute surprise-a deputy minister would testify that she personally reviewed and rejected Edgar’s claim (after Strosberg became involved). Strosberg was confident the judge would reject the relevance of the new evidence, but it certainly made the case more complicated. Strosberg would reduce the offer-but only somewhat, because he figured he had scored useful points in cross-examination that day.
Strosberg in high “cross” gear is a fearsome sight, shoulders broad under black silk, big right fist clenched on out-thrust hip, eyes unblinking, lips curled inward, questions asked in a voice hard with certainty. This morning hje confronts former customs investigator Dwight St. Louis and demands: “Is this a memorandum signed by you? In your examination for discovery, you told me the ‘informant’ referred to in this memorandum was Ms. Edgar-do you remember that? Was your answer true? In your examination this morning, you said the informant was Mr. Engel-do you remember that? Which answer was true? Both? I see-so now, you say, this ‘informant’ was both of them? I see.”
The memorandum itself had not been a major point until the moment St. Louis contradicted himself that morning. Right then, Strosberg had found the vital first salvo for “cross.” St. Louis, standing tall and affably loose-limbed as Strosberg rose, was hunched, pale and frowning five minutes later. This relationship established, Strosberg leaned over his papers, and began the task of lulling St. Louis into saying what the plaintiff needed him to say. “I don’t recall for sure,” the witness said again and again for two hours, and each time, plaintiff’s counsel savored the words without comment. That evening, on the Dash-8, Strosberg would sip a glass of water and state, as from the heart: “There’s no place I’d rather be than in a courtroom.”
It can be helpful for opposing counsel to believe you’d rather try a case than settle, but Strosberg’s passion for advocacy is unmistakable. As chair of discipline for the law society in 1993, he halted a complaint against visiting B.C. lawyer Douglas Christie despite finding evidence of “poor judgment” and anti-Semitic remarks during the trial of alleged war criminal Imre Finta. Strosberg wrote that allowances should be made for the “tension, passion and drama” of a jury trial. “Otherwise,” he warned, “the risk would be to harness or inhibit counsel precisely when she or he needs most to exhibit fearlessness and independence in the client’s best interests.”
As an officer, or “bencher,” of the law society, Strosberg won some acclaim for his management of a $154-million deficit in the lawyers’ liability insurance fund in 1994. His reward was election last June to the prestigious post of treasurer, or chair of the society’s board of governors. He says that among other goals for his maximum two-year term, he actually wants to solve the problem of Ontario’s besieged legal-aid system (“Yeah, solve it,” he shrugs), and to win increased powers for the law society to act against dishonest-and incompetent-lawyers. He has already moved to give teeth to so-called equity and diversity rules-covering gender, race, sexual orientation, and disabilities) for law firms. And, on June 28, this year’s Gay Pride day in Toronto, plans to host the law society’s first reception for gay and lesbian lawyers.
Strosberg plainly enjoys showing a visitor around the society’s old-money Osgoode Hall digs, pointing out the portraits of famous former treasurers. “Harvey comes from a different world than he’s in now,” says litigator Royce. “He’s certainly a more driven person than someone who’s grown up with a dad who’s a lawyer or a bank president. He wants to be a big bloody deal, and he is.”
Big enough to get the call from Ottawa when old buddy Rock, then justice minister, needed strategic help on former prime minister Brian Mulroney’s Airbus libel suit. On Jan. 7, 1997, Strosberg flew home from Ottawa feeling the triumph-“an absolute high”-of a big case settled for an apology and costs. (Mulroney has since made an additional demand for withdrawal of an RCMP letter to Swiss officials.) But the next day brought news of a different kind: judgment in the case of Derek Alchimowicz, known to all of Windsor as the “drunk diver.”
Four years previously, Alchimowicz, a 26-year-old illegal immigrant, had climbed onto the hand railing of a dock off Windsor’s Sand Point Beach, dived into water three feet deep, and become quadriplegic. Strosberg filed suit on the young Austrian’s behalf, citing negligence by the city and by the friends and acquaintances who drove Alchimowicz to the party, supplied him with liquor, took him to a “place of danger,” in the words of WHAT TK, and watched him make his dive.
Popular reaction was incredulous. Letters poured into the Windsor Star: Alchimowicz was drunk; he had done a tremendously stupid thing. The lawsuit offended “our most basic beliefs about friendship and loyalty and assuming responsibility for our actions,” wrote Star columnist Gord Henderson. “It scared us as well, by pointing out just how easily we too could become defendants.”
Strosberg, in turn, was stunned by the lack of public compassion. “What happened to that kid could have happened to a
10-year-old child from a middle-class family,” he pointed out. His witnesses at trial included a former lifeguard who had seen children jumping from that dock and a waterfront-safety expert who considered its enticingly flat railings a clear hazard. “If a round railing costs no more, then why shouldn’t we say that the city should act reasonably?” the lawyer asks, his voice dropping a register (as, according to his kids, it always does when he’s mad). “We have to recognize in our society that people do get drunk. People do act foolishly.”
As for the personal-responsibility argument, Strosberg points out that in Canada, society usually shares responsibility for injuries. Government health plans pay the medical bills and-like all insurers-automatically get reimbursed with a share of damages after any successful lawsuit. Also, it is mostly insurance companies that pay for litigation. “Insurance is a method of spreading risk, of socially dealing with losses,” Strosberg says. “And an acceptable one.” He also thinks it is time society pressed the responsibilities of designated drivers, and of social hosts who provide liquor. “It’s a wonderful sociological problem,” he says.
But in Derek Alchimowicz’s case, Judge Joseph Quinn ruled the only negligence was the plaintiff’s own. The beach was no more a
“place of danger” than an ordinary home with a flight of stairs, and the dock’s railing-so alarmingly flat to Strosberg’s eyes-was “an obvious indication that this was not a swimming dock.” Case dismissed, with costs. Strosberg is appealing. His firm has already put up to $500,000 worth of billable hours into the case and, if he loses, he gets nothing. “What am I supposed to do-take my client’s wheelchair?” the lawyer chortles. “I’m running the biggest crap game in the country here.” And he seems as addicted as any gambler. Strosberg works seven days a week, and says he enjoys every minute. His wife, Cathy, sometimes feels their shared life “takes a back seat,” but the office is a kind of home to his son, two daughters and two step-children, who walk in without knocking, sit at the round marble-topped desk during meetings with other lawyers, and leave with or without hello or goodbye. Even Isaiah, the family’s white labrador, attends on weekends. All three of Strosberg’s own kids, aged 21 to 27 are pursuing legal careers. “I don’t really know why,” frowns Sharon, 25. “It was the natural thing to do. I’ve always been around this office, because Dad’s always working.”
What he is working on nowadays, more than anything else, is class actions, and they are a lot of work. Strosberg says the pacemaker case involved $800,000 in out-of-pocket expenses. About 250,000 documents had to be reviewed, indexed and scanned into a computer system; at least one associate worked full-time on the case for two years. To finance his original estimate of expenses, Strosberg got court approval for a $350,000 private loan-secured against the eventual award, if any-at 20 per cent interest. “A good lawsuit is probably a better bet than the stock market,” says Strosberg. “But class action litigation is not for the faint of heart or the thin of pocketbook.” Which did not deter him from filing three new class actions last year-none of them a sure thing.
In the case against Bre-X and seven brokerages, Strosberg leads a group of four law firms in Ontario , but has spent much time jockeying with Alberta and B.C. lawyers who support a worldwide class action due to be filed in the richer jurisdiction of Texarkana, Tex. Strosberg, waxing strangely nationalistic, says Canadians should sue Canadians in Canada. But Vancouver lawyer David Klein says a single U.S. hearing would simply be better for all shareholders. The western lawyers would happily cooperate with the Ontario group, he says, but only as equals. “Mr. Strosberg would prefer more control of the litigation,” says Klein.
The second case is against the four major Visa-issuing banks, who routinely credit foreign refunds at fractionally less than the original Canadian-dollar charge. Strosberg’s statements of claim alleged that the banks profit from the spread between
“buy” and “sell” currency rates. Recalls litigator Royce: “He told me about this case over dinner one night and I said,
‘Harvey, who gives a shit?’ He said, ‘You’re missing the point. It adds up’.” But how much? The first two banks to file defences both denied a currency profit, citing transaction charges instead. So did Strosberg call the whole thing off? No, indeed. “The question I have now is, how can you charge a transaction fee where there has been no transaction?” Besides, one of the banks had not divulged the charge in its cardholder contract.
The third case is against the Canadian Red Cross and eleven governments, over blood transfusions tainted with hepatitis-C at a time when blood was being screened effectively in the United States and much of Europe. It is possible that governments may offer, and victims accept, no-fault payments recommended by the Krever Commission in November. If so, Strosberg’s hours on that case also will be in vain.
But if not, he may enjoy prosecuting something that is slightly less common for him than for many of his peers-a res ipsa loquitur claim (one in which the facts seem to speak for themselves), and one that swims squarely in the main stream of negligence law. It is a stream that rose in 1932, in the famous House of Lords case of Donoghue v. Stephenson. Those who dislike the idea of negligence suits should blame Lord Atkins, who declared in that case: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” Ever since, negligence lawsuits have revolved around just two questions. One concerns the meaning of a “reasonable” standard of care. The other was first posed by a lawyer in the Gospels: “And who is my neighbor?”
A DAY AFTER the tarmac settlement conference, Julie Thorburn called to decline, with thanks, Strosberg’s offer to settle at
$1.6 million. Two trial days later, Judge Thomas Zuber delivered judgment. Revenue Canada had fulfilled its obligation to Dorothy Edgar when its deputy minister looked into her case; case dismissed. This time, at the judge’s suggestion, defence counsel agreed not to press for costs.
Edgar, impecunious and angry, was in tears as she faced reporters, but her lawyer, ever the craps-game man, said: “You win some, you lose some.” Gambled and lost were Strosberg’s expenses and time, and a $300,000 settlement offer made by the government shortly before the trial. Right away, he rolled the dice again, announcing an appeal. “I love this little case,” he says, because the principle that Edgar should be rewarded in proportion to the value of her services-a principle explicitly rejected by Judge Zuber-is “virgin territory-a wonderful point of law.”
Most plaintiffs’ lawyers prefer cases where the territory is not virgin-where the issue is not whether money will change hands, but how much. Sidewalk “slip-and-falls,” for instance, are good business (because the insurers of the person who didn’t clear his ice will almost certainly pay up), but they are small business (because the injuries, and therefore the damages, tend to be minor). Bigger cases are usually more complicated, and are defended more vigorously.
Those are the ones Strosberg likes best-the “interesting” cases, he calls them. Reaching for new heights and new precedents, the high-stakes tort man wins some (big time: the pacemaker case), and loses some (big time: the drunk diver, on whose behalf Strosberg says he turned down “a lot-a lot-of money”). In the coming months, he will argue that wrongful-death damages are due from two Brampton, Ont., men who were acquitted of the robbery-murder of OCC TK Robert Lord WHEN. And that heirs to wherefrom tool-and-die entrepreneur William Bolton, killed in a private-airplane crash near Killarney, Ont., in 1994, deserve compensation for loss of the dead man’s business guidance and contacts. And that the owner of Last Harry’s bar in Windsor deserves compensation from a teenager who lied about his age, leading to liquor-licensing charges against the plaintiff.
Not that Strosberg will concede even one of those cases to be a reach. In his view, they merely apply established legal principles to new circumstances. Such novel cases-to the last “wonderful point of law”-would probably be a lot easier to win, or to settle profitably, if they were fought on the other side of the Detroit River. But he works in Canada, where almost all tort actions are still decided by judges, not juries. Canada, where most judges remain cautious about imposing new legal duties on social hosts, designated drivers, dock designers, tax collectors, doctors, accountants or big business. Canada, where, as a result, insurers don’t cave so often.
To be king of torts, you have to reach higher, run harder-thump, thump, thump-and risk all.
With RAY JONES in Toronto.