Harris Flashcards
Would canadian tort reform be provincial or federal?
Provincial (needs to be coordinated with the various Attorneys General)
What is the position of the insurance industry on Canadian tort reform and why?
Insurance industry WANTS REFORM:
- Lowers costs
- Increases stability & predictability of awards
What is the position of the Supreme Court on Canadian tort reforms?
Supreme Court will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted
What is the position of trial lawyers on Canadian tort reforms and why?
They don’t want reform
- Compensation for both plaintiffs & lawyers could be lower (victims may not be paid in full)
Identify potential reforms to Canada’s plaintiff-friendly tort system (4)
- Joint & Several Liability
- Eliminate
- Replace with proportional liability (each defendant bears a cost proportionate to their degree or fault or liability)
- Create fund for guilty parties who can’t pay - Collateral source rule
- Eliminate - Compensatory basis
- Change from gross to net basis - Vicarious liability
- Eliminate
Define J&S (Joint & Several) Liability
Plaintiff may recover (ANY or ALL damages) from (ANY or ALL defendants) regardless of share of liability
This ensures that plaintiffs are still indemnified to the fullest in the event one or more defendants is insolvent, to the detriment of solvent co-defendants
Describe the proposed reform for J&S liability (3)
ELIMINATE J&S: for non-pecuniary damages
REPLACES J&S: with rule of proportional liability (each defendant bears a cost proportionate to their degree or fault or liability)
FUND creation: for guilty parties that can’t pay
Define the “collateral source rule” & provide an example of a collateral source
Rule: Evidence of a plaintiff’s collateral source of compensation need not be entered AT TRIAL (examples include sick pay & disability)
- There is therefore potential for over-compensation & double recovery of plaintiff
Describe the proposed reform to the “collateral source rule”
Eliminate (& allow collateral sources to be taken into account when determining award, so as to not have over-compensation)
Define “compensatory basis” in the context of income replacement
Compensatory basis:
- Refers to basis for compensating loss of income
- The basis can be either prior net income OR prior gross income
- Income replacement is a certain % of this basis
- Current practice uses a % of gross income
Comment:
- Gross basis ignores taxes & work-related expenses that aren’t incurred when not working
- So there is potential for over-compensation
Describe the proporsed reform to “compensatory basis” in the context of income replacement
Switch from gross to net basis
Define “vicarious liability” and provide an example
Defn: where one party is held responsible for actions of another
- Examples: employee, subordinate, sublease, car rental, sexual abuse
This makes the search for deep pocket possible
Describe the proposed reform to “vicarious liability”
Eliminate it entirely
Identify an advantage/disadvantage of “joint & several liability” reform
Advantage:
- Discourages search for deep pockets & decreases costs
Disadvantages:
- Increased cost to determining proportionate liability
- Parties would tend to argue for a lower percentage
Identify an advantage/disadvantage of “collateral source rule” reform
Advantage:
- Reduces possibility of over-compensation
Disadvantage:
- Guilty party may not provide full compensation (but they should)
Identify an advantage/disadvantage of “compensation basis” reform
Advantage:
- Reduces possibility of over-compensation
Disadvantage:
- Interferes with intentional government tax break for injured party
Identify an advantage/disadvantage of “vicarous liability” reform
Advantage:
- Discourages search for deep pockets
Disadvantage:
- All involved parties should be held responsible regardless of level of liability
How does “joint & several liability” increase efficiency?
Reduces time & costs: promotes pre-trial settlement since damages don’t have to be apportioned
(Advantage or disadvantage) of J&S Liability with respect to defendant (1-1)
Advantage:
- Can share burden
Disadvantage:
- May have to pay a greater proportion THAN the degree of liability
(Advantage or disadvantage) of J&S Liability with respect to plaintiff (1-0)
Advantage:
- Increases probability of full compensation WITH access to assets of all defendants
No disadvantages
(Advantage or disadvantage) of J&S Liability with respect to Insurers (1-1)
Advantage:
- Can share burden
Disadvantage:
- May have to pay a greater portion THAN the degree of liability (cost unpredictability)
(Advantage or disadvantage) of J&S Liability with respect to lawyer (1-1)
Advantage:
- Increases efficiency in legal system since it promotes settlement without trial
Disadvantage:
- Fewer cases go to court (so laywers get less settlement fees)
How are Canadian tort laws too plaintiff friendly?
Essentially is due to the JCCV reasons
Give an example of a defendant group negatively impacted by J&S liability & state the impact
Group: peripheral defendants in asbestos injury suits
Impact: major defendants are likely bankrupt, others may pay more than their fair share under J&S
Could also have been deep pocket defendants
Disadvantage of simple elimination of J&S liability
- If a defendant goes bankrupt then there is no recourse to assets of other defendants
- Plaintiff may not be fully compensated
Remedy to disadvantage of simple elimination of J&S
Creation of a fund for guilty parties that can’t pay their share
