Harris Tort Reform Tension

Question 1

Provide Areas of reform of Insurance Bureau of Canada

Answer 1

• Joint and several liability
• Collateral sources rule
• Vicarious liability
• Establishing net income as the basis for determining damages: Currently damages for loss of income are based on gross income

Question 2

Define vicarious liability

Answer 2

Responsibility of any 3rd party that had the “right, ability, duty to control” the activities of a violator

• Employers are vicariously liable for negligent acts or omissions by their employees in the course of employment
• Owner of a car can be held vicariously liable for negligence committed by a person to whom the car has been lent

Question 3

Provide Main issues with vicarious liability today

Answer 3

Risk managers say that the standards and test for establishing vicarious liability are not high enough in many cases:
• Sexual abuse claims
• Car leasing or renting

Question 4

Briefly explain the opinion of lawyers on caps on non-economic damages and or punitive damages

Answer 4

If there is a cap, the innocent victim does not get full compensation and we abandon years of jurisprudence. The number one rule of law is that the innocent party gets full compensation, that is what rules like joint and several liability are all about

Question 5

Briefly describes the “Establishing net income as the basis for determining damages” issue

Answer 5

• Damages for loss of income are determined on gross earnings (do not take into account taxation and other employment deductions)
• Plaintiffs can collect more than they would have received if they were working

Question 6

Briefly describe the point of view of Ontario Trial Lawyers Association on damages for loss of income

Answer 6

The government has granted the victim’s right to full compensation by not taxing future income, it is not business of insurer

Question 7

According to IBC, what is the primary reason behind the increase in claims?

Answer 7

The cost of settling court cases and potential court cases (commr liab), which has increased significantly over the past few years

Question 8

Explain Deep pocket syndrome

Answer 8

A situation where claims are made based on the ability of the defendant to pay rather than on share of blame. An injured party will try to blame the party with the greatest wealth (deepest pocket) where there is more than one potential defendant.

Question 9

Explain Defenders opinion of the principle of joint and several liability

Answer 9

It protects victims from being under-compensated if one of the defendants cannot pay his share.

• Increase efficiency in the legal system. Promotes settlement in many cases
• If only end up paying % basis; would have more trials. Very expensive and slow the whole system down

Question 10

Explain Defenders opinion of the principle of joint and several liability

Answer 10

It protects victims from being under-compensated if one of the defendants cannot pay his share.

• Increase efficiency in the legal system
• Promotes settlement in many cases
• If only end up paying % basis; would have more trials
• Very expensive and slow the whole system down

Question 11

Explain Opponents opinion of the principle of joint and several liability

Answer 11

Led to cases in which a party with a very minor part of the responsibility unfairly shoulders the burden of damages

Eliminiation:
• Would discourage plaintiffs from approaching defendants on the deep pocket syndrome
• Tendency toward “plaintiff-friendly” rulings makes some insurance groups reluctant to go to court