Identifying The Problems
While the preceding case histories identify what the system can do to the brain injured, solutions to these problems are more elusive. Three critical deficiencies of the legal process are illustrated by these cases:
Access to justice. The Canadian Charter of Rights promises, for everyone, regardless of mental or physical health, equal access and equal treatment before the law. Did the victim have the same access to and receive equal treatment before the law as anyone else? YES or NO.
Litigation guardian available. One of the protections provided by the Supreme Court Civil Rules is that a litigation guardian must act for a brain injured adult found to be "under disability". Was a litigation guardian available? YES or NO.
Adequate compensation. Out of court settlements rely on the integrity of the lawyers involved - which can be a risky proposition. If the claim did not proceed to court, was the "out of court settlement" consistent with what an ordinary, reasonable person would find satisfactory? YES or NO.