Harris - Tort Reform Flashcards
Would Canadian tort reform be provincial or federal?
Provincial: it needs to be coordinated with the various Attorney Generals
Position of insurance industry towards tort reform.
Insurance industry WANTS REFORM:
- it would lower COSTS
- it would increase STABILITY & predictability of awards
Position of the Supreme Court towards tort reform.
The Supreme Court will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted.
Position of trial lawyers towards tort reform.
Trial Lawyers DO NOT want reform if it changes their compensation.
Identify potential reform to Canada’s plaintiff-friendly tort system. (4)
- Joint & Several Liability: eliminate, replace with proportional 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.
The Plaintiff may recover ANY or ALL damages from ANY or ALL defendants regardless of the share of liability.
Describe the proposed reform for J&S (Joint & Several) Liability. (3)
- Eliminate J&S: for non-pecuniary damages
- Replace J&S: with rule of proportional liability
- Creation of Funds: create funds for the guilty parties that are unable to pay
Describe Proportional Liability.
Each defendant bears the cost proportionate to the degree of fault or liability.
Define the Collateral Source Rule, and provide an example.
Evidence of plaintiff’s collateral source need not be entered AT TRIAL.
Eg: sick pay, disability
Describe the proposed reform for the Collateral Source rule.
Eliminate and allow collateral sources to be taken into account when determining the award.
Define Compensatory Basis in the context of income replacement. (5)
- refer to the basis for compensating loss of income
- the basis can be either prior net income OR prior gross income
- income replacement is a percentage of this basis
- current practice uses a percentage of gross income
- comments: gross basis ignores taxes and work-related expenses that aren’t incurred when not working, thus there is the potential for overcompensation
Describe the proposed reform to the Compensatory Basis in the context of income replacement.
Switch from gross to net basis.
Define Vicarious Liability and provide some examples.
Where one party is held responsible for actions of another.
- eg: the employee, subordinate, sublease, car rental, sexual abuse
Describe the proposed reform to Vicarious Liability.
Eliminate.
Identify an advantage and disadvantage of J&S (Joint & Several) Liability reform.
- Advantage: discourages the search for deep pockets and reduces costs
- Disadvantage: there is a cost to determining the proportionate liability, since there would be arguments from parties to be assigned a lower %age of liability
Identify an advantage and disadvantage of the Collateral Source Rule reform.
- Advantage: reduces the possibility of over-compensation
- Disadvantage: the guilty party may not provide full compensation when they should
Identify an advantage and disadvantage of the Compensation Basis Reform.
- Advantage: reduces the possibility of over-compensation
- Disadvantage: interferes with INTENTIONAL government tax break for injured party
Identify an advantage and disadvantage of Vicarious Liability reform.
- Advantage: discourage the search for deep pockets
- Disadvantage: ALL parties involved should be held responsible REGARDLESS of the level of liability
How does J&S (Joint & Several) liability increase efficiency?
It reduces time & costs by promoting pre-trial settlements since damages don’t have to be apportioned.
Advantage and disadvantage of J&S (Joint & Several) liability, from the defendant’s perspective.
- Advantage: can collectively share the burden
- Disadvantage: may have to pay a greater proportion THAN the degree of liability
Advantage and disadvantage of J&S (Joint & Several) liability, from the plaintiff’s perspective.
- Advantage: increases the probability of full compensation WITH access to all defendants
- Disadvantage: none
Advantage and disadvantage of J&S (Joint & Several) liability, from the insurer’s perspective.
- Advantage: can collectively share the burden
- Disadvantage: may have to pay a greater proportion THAN the degree of liability -> this increases the costs and unpredictability
Advantage and disadvantage of J&S (Joint & Several) liability, from the lawyers’s perspective.
- Advantage: increases the efficiency of the legal system since it promotes pre-trial settlements
- Disadvantage: fewer cases go to court, which may result in less money for the lawyers
Disadvantage of simple Elimination of J&S (Joint & Several) liability. (2)
- if a defendant goes bankrupt, then there is not recourse to assets of the other defendants
- the plaintiff may not be fully compensated
