Harris - Tort Reform

Question 1

Would Canadian tort reform be provincial or federal?

Answer 1

Provincial: it needs to be coordinated with the various Attorney Generals

Question 2

Position of insurance industry towards tort reform.

Answer 2

Insurance industry WANTS REFORM:

• it would lower COSTS
• it would increase STABILITY & predictability of awards

Question 3

Position of the Supreme Court towards tort reform.

Answer 3

The Supreme Court will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted.

Question 4

Position of trial lawyers towards tort reform.

Answer 4

Trial Lawyers DO NOT want reform if it changes their compensation.

Question 5

Identify potential reform to Canada’s plaintiff-friendly tort system. (4)

Answer 5

• 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

Question 6

Define J&S (Joint & Several) Liability.

Answer 6

The Plaintiff may recover ANY or ALL damages from ANY or ALL defendants regardless of the share of liability.

Question 7

Describe the proposed reform for J&S (Joint & Several) Liability. (3)

Answer 7

• 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

Question 8

Describe Proportional Liability.

Answer 8

Each defendant bears the cost proportionate to the degree of fault or liability.

Question 9

Define the Collateral Source Rule, and provide an example.

Answer 9

Evidence of plaintiff’s collateral source need not be entered AT TRIAL.
Eg: sick pay, disability

Question 10

Describe the proposed reform for the Collateral Source rule.

Answer 10

Eliminate and allow collateral sources to be taken into account when determining the award.

Question 11

Define Compensatory Basis in the context of income replacement. (5)

Answer 11

• 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

Question 12

Describe the proposed reform to the Compensatory Basis in the context of income replacement.

Answer 12

Switch from gross to net basis.

Question 13

Define Vicarious Liability and provide some examples.

Answer 13

Where one party is held responsible for actions of another.

- eg: the employee, subordinate, sublease, car rental, sexual abuse

Question 14

Describe the proposed reform to Vicarious Liability.

Answer 14

Eliminate.

Question 15

Identify an advantage and disadvantage of J&S (Joint & Several) Liability reform.

Answer 15

• 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

Question 16

Identify an advantage and disadvantage of the Collateral Source Rule reform.

Answer 16

• Advantage: reduces the possibility of over-compensation

- Disadvantage: the guilty party may not provide full compensation when they should

Question 17

Identify an advantage and disadvantage of the Compensation Basis Reform.

Answer 17

• Advantage: reduces the possibility of over-compensation

- Disadvantage: interferes with INTENTIONAL government tax break for injured party

Question 18

Identify an advantage and disadvantage of Vicarious Liability reform.

Answer 18

• Advantage: discourage the search for deep pockets

- Disadvantage: ALL parties involved should be held responsible REGARDLESS of the level of liability

Question 19

How does J&S (Joint & Several) liability increase efficiency?

Answer 19

It reduces time & costs by promoting pre-trial settlements since damages don’t have to be apportioned.

Question 20

Advantage and disadvantage of J&S (Joint & Several) liability, from the defendant’s perspective.

Answer 20

• Advantage: can collectively share the burden

- Disadvantage: may have to pay a greater proportion THAN the degree of liability

Question 21

Advantage and disadvantage of J&S (Joint & Several) liability, from the plaintiff’s perspective.

Answer 21

• Advantage: increases the probability of full compensation WITH access to all defendants
• Disadvantage: none

Question 22

Advantage and disadvantage of J&S (Joint & Several) liability, from the insurer’s perspective.

Answer 22

• 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

Question 23

Advantage and disadvantage of J&S (Joint & Several) liability, from the lawyers’s perspective.

Answer 23

• 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

Question 24

Disadvantage of simple Elimination of J&S (Joint & Several) liability. (2)

Answer 24

• if a defendant goes bankrupt, then there is not recourse to assets of the other defendants
• the plaintiff may not be fully compensated