Does it help to have the right lawyer argue your case in court? We would like to think that it doesn’t matter: that the justice of the case will prevail, regardless of how persuasive your lawyer is.
Well, try telling that to Robbie Levita. He lost his personal injury lawsuit in 2015 in which he sued the guy who hit him from behind during the dying minutes of a rec-league hockey game. He has to be scratching his head at the more recently-released case of Casterton v MacIsaac, where Drew Casterton sued the guy who hit him during the dying the minutes of a rec-league hockey game and won a judgment for more than $700,000.00.
To find any substantial difference between Mr. Levita’s case and Mr. Casterton’s case is an exercise in splitting hairs very, very finely. Any difference between the cases is minor, while the similarities are striking:
| Levita | Casterton |
| Playing in a “non-contact” recreational hockey league in Ontario | Playing in a “non-contact” recreational hockey league in Ontario |
| Signed a liability waiver in favour of the league | Signed a liability waiver in favour of the league |
| Incident happened in the last minute of play, with his team trailing | Incident happened in the last minute of play, with his team trailing |
| Hit by an opposing player while not in possession of the puck | Hit by an opposing player while not in possession of the puck |
| Suffered serious injuries, including a broken tibia and fibula | Suffered serious injuries, including long-term brain damage |
To find any differences between these two incidents requires a fair degree of creative thinking. What tipped the results in either direction were the factual findings by the respective Judges. Mr. Justice Firestone found that that the guy who hit Mr. Levita did not do so with an intent to injure, while Madam Justice Gomery found that the guy who hit Mr. Casterton deliberately attempted to injure him, or was reckless about the possibility that he would do so. It was on these findings of fact that the respective cases turned.
The Casterton case shows that the Levita case could have easily turned out differently, and vice versa. One has to question how much of a role the advocacy of the respective lawyers played in these cases.
- Did Mr. Casterton have more effective advocates than Mr. Levita?
- Or, did the Defendant in the first case have more effective advocates than the Defendant in the second case?
- Perhaps it was a combination of both?
At the same time, it may have been some other reason or reasons, completely unrelated to the effectiveness of counsel. Perhaps the Defendant in the Levita case came across as sympathetic and remorseful in a way that the Defendant in the Casterton case did not: we can only speculate. All the same, we cannot rule out the strong possibility that the effectiveness of counsel played some role in these two very similar cases ending up with very, very different results.